1 apeal699.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.
699 OF 2002
Rajesh s/o Ganesh Uke,
Aged about 24 years,
Occupation – Labourer,
R/o Rambagh Zopadpatti,
P.S. Imambada, Nagpur. …. APPELLANT
VERSUS
State of Maharashtra,
through P.S.O. Imambada Police Station,
Nagpur. …. R ESPONDENT
__
Shri R.M. Patwardhan, Advocate for the appellant,
Shri N.R. Patil, Additional Public Prosecutor for the respondent.
__
CORAM : ROHIT B. DEO
, J.
DATE OF RESERVING THE JUDGMENT
:
04-01
-201
8
DATE OF PRONOUNCING THE JUDGMENT :
14-02
-201
8
JUDGMENT :
Exception is taken to the judgment and order dated
05-12-2002 rendered by the learned 6th Ad hoc Assistant Sessions
Judge, Nagpur in Sessions Trial 62/2002, by and under which the
appellant-accused is convicted for offence punishable under Section
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342 of the Indian Penal Code (“IPC” for short) and is sentenced to
suffer rigorous imprisonment for six months and is further convicted
for offence punishable under Section 376(2)(f) of the IPC and is
sentenced to suffer rigorous imprisonment for ten years and to
payment of fine of Rs.1,000/-.
2. The child victim, then aged 8 years, was residing at
Panchnal Square, Imambada with her maternal aunt Yashodhara
Bhagwat since her birth. The father of the child victim Panjabrao
Gajbhiye is no more and her mother Gautamabai was residing at
Ambika Nagar, Manewada. The genesis of the prosecution lies in oral
report dated 24-5-2001 lodged at Imambada Police Station, Nagpur by
Sau. Yashodharabai (P.W.1). The gist of the said report (Exhibit 15) is
that at 10-00 p.m. or thereabout on 24-5-2001, a neighbour Pratiksha
Waghmare (P.W.3) disclosed, that two days ago between 1-00 p.m. and
3-00 p.m. when the child victim was playing in the courtyard, the
accused who resided in the neighbourhood took the child victim to his
house, he closed the door and removed the knicker worn by the child
victim, made the child victim to sleep on the cot, undressed and
forcibly inserted his penis in the vagina. The child victim disclosed to
Pratiksha Waghmare (P.W.3), that she was experiencing pain in vagina
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and when the accused committed sexual intercourse, due to some
sticky substance emitted from the penis, she experienced “sticky
feeling”. P.W.3 Pratiksha Waghmare told the informant that the child
victim did not disclose the incident to the informant since she feared
that her aunt (P.W.1) and uncle would beat her. The informant made
enquiries with the child victim, who though frightened narrated the
entire incident, the informant conveyed the same to her husband. The
informant also narrated the incident to the mother of the child victim.
The informant took the child victim to a private hospital for medical
examination. Dr. Padole opined that the child victim has suffered a
slight vaginal tear at the lower portion and that she was subjected to
sexual intercourse.
3. The oral report was reduced to writing and the printed
first information report is Exhibit 16 on the record of the trial Court.
On the basis of the said report, offence punishable under Sections 341,
342 and 376(2)(f) of the IPC was registered against the accused. The
child victim was referred to the Government Medical College Hospital,
Nagpur for medical examination. The clothes of the child victim and
the accused were seized. The accused was also medically examined.
The culmination of investigation led to submission of the charge-sheet
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in the Court of Judicial Magistrate First Class (Corporation Court 1),
Nagpur who committed the proceeding to the Sessions Court.
4. The learned Sessions Judge framed charge (Exhibit 7)
under Sections 342 and 376(2)(f) of the IPC. The accused abjured
guilt and claimed to be tried in accordance with law. The defence is of
total denial. The further defence is of false implication. According to
the accused, he was working with the maternal uncle of child victim.
Initially, he was paid regularly, however, later on the maternal uncle of
the child victim defaulted in making payment of the wages of the
accused and was threatened by the maternal uncle of the child victim
of false implication.
5. The child victim (P.W.2), who was aged 9 years when the
evidence was recorded, has deposed that she was studying in the 3rd
Standard and on the day of the incident was playing in the courtyard of
her maternal aunt. The accused held her hands and took her to his
house. The accused put bed-sheet on the cot, removed his knicker and
the knicker worn by the child victim and inserted his male organ in her
private part. The child victim shouted, the accused pressed her mouth
and threatened to beat her if the incident is disclosed. She did not
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disclose the incident to her maternal aunt (P.W.1) nurturing a fear that
she would be beaten by her maternal aunt and her mother. She
disclosed the incident to P.W.3 Pratiksha Waghmare who in turn
disclosed the same to her maternal aunt (P.W.1). The child victim was
taken to the hospital and then to the police station. The police referred
her for medical examination. She has identified the accused present in
the Court and the seized clothes which she was wearing on the day of
the incident.
In the cross-examination, it is elicited that the husband of
P.W.1 is a building contractor. The child victim admits that the accused
was an employee of the husband of her maternal aunt. She admits that
some days before the incident a quarrel took place between the
accused and her maternal uncle on the issue of payment of money. She
admits that her maternal uncle told the accused not to work with him.
She further admits that her maternal uncle threatened the accused that
he will file police case against the accused. She admits that at the
instance of the maternal uncle, her maternal aunt had lodged report at
the police station. The child victim categorically denies the suggestion
that the accused did not commit rape on her. The statement in the
examination-in-chief that the accused held her hands and took her to
his house, is brought on record as an omission. The statement that
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when the child victim shouted, the accused pressed her mouth and
threatened to beat her, is also brought on record as an omission.
6. P.W.1 Yashodhara Bhagwat, who is the informant, has
deposed consistently with the first information report. She has
deposed that when she enquired from the child victim about the
information received from Pratiksha Waghmare, the entire incident was
narrated by the child victim. P.W.1 has deposed that she took the child
victim to Dr. Padole and then lodged the report (Exhibit 15). She has
proved the seizure panchanama (Exhibit 17) while which the clothes
worn by the child victim were seized.
She has denied the suggestion that a dispute arose
between her husband and the accused on the issue of payment of
wages. She has denied the suggestion that her husband threatened the
accused of false implication, if the accused demanded wages. It is
elicited in her cross-examination that the disclosure was made by P.W.3
Pratiksha Waghmare on 25-5-2001 and not on 24-5-2001 as is stated in
the report. Few omissions are brought on record vis-a-vis the oral
report. The omissions, however, do not touch the core and substratum
of the report. The oral report though dated 24-5-2001, was lodged on
25-5-2001 at 10-00 a.m., as is revealed from the printed first
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information report (Exhibit 16).
7. P.W.3 Sau. Pratiksha Waghmare has deposed that when she
was talking with a lady, the child victim said that she has a husband.
P.W.3 asked the child victim who is her husband and the child victim
pointed her finger towards the accused who was sitting near the
latrine. P.W.3 inspected the private part of the child victim and noticed
swelling. The child victim was then taken to the hospital by P.W.1, is
the deposition.
In the cross-examination, she was given suggestions to
elicit that there was a dispute between the accused and the husband of
P.W.1 on the issue of payment of wages. P.W.3 has, however, disclaimed
any knowledge about such dispute.
8. P.W.4 Dr. Rajesh Gajbhiye, who was then attached with the
Government Medical College Hospital, Nagpur as Lecturer in
Gynecology, has deposed that when he examined the child victim, the
hymen was found torn.
In the cross-examination, it is elicited that it is not
recorded in the medical certificate (Exhibit 24), who narrated the
history of the incident. P.W.4 admits that in case of rape on minor,
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there should be redness, inflammation or tear of the private parts of
the victim. P.W.4 admits that except torn hymen he did not notice any
other injury on the private parts of the child victim. P.W.4 admits that
he did not mention the age of the tear of hymen in the medical
certificate (Exhibit 24). It is elicited that tear of hymen is possible due
to various reasons.
9. P.W.5 Bhila Bacchav is the Investigating Officer. It is
elicited in the cross-examination that there is overwriting over the
dates in printed first information report (Exhibit 16). However, he
asserts that the report was lodged on 25-5-2001. The Investigating
Officer was asked about the delay in lodging the report and in response
he states that enquiries revealed that since the child victim was
frightened, she did not disclose the incident to her maternal aunt and
her husband and the child victim disclosed the incident to a third
person. It is elicited that the statement of the child victim was not filed
alongwith charge-sheet. The explanation given is that the statement
was not filed due to inadvertence. However, he denies the suggestion
that he did not record the statement of the child victim. He admits that
no date is mentioned on the top of the first page below the signature
on the statement of the child victim. This again is attributed to
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oversight.
10. Shri R.M. Patwardhan, the learned counsel for the accused
would submit that in the light of the admissions elicited in the cross-
examination of the prosecutrix, it would be extremely unsafe to base
the conviction on her testimony. Shri R.M. Patwardhan invites my
attention to the following observations of the Apex Court in
K. Venkateshwarlu vs. State of Andhra Pradesh, (2012)8 SCC 73:
“9. Several child witnesses have been relied upon in this
case. The evidence of a child witness has to be subjected to
closest scrutiny and can be accepted only if the court comes
to the conclusion that the child understands the question put
to him and he is capable of giving rational answers (see
Section 118 of the Evidence Act). A child witness, by reason
of his tender age, is a pliable witness. He can be tutored
easily either by threat, coercion or inducement. Therefore,
the court must be satisfied that the attendant circumstances
do not show that the child was acting under the influence of
someone or was under a threat or coercion. Evidence of a
child witness can be relied upon if the court, with its
expertise and ability to evaluate the evidence, comes to the
conclusion that the child is not tutored and his evidence has
a ring of truth. It is safe and prudent to look for
corroboration for the evidence of a child witness from the
other evidence on record, because while giving evidence a
child may give scope to his imagination and exaggerate his
version or may develop cold feet and not tell the truth or may
repeat what he has been asked to say not knowing the
consequences of his deposition in the court. Careful
evaluation of the evidence of a child witness in the
background and context of other evidence on record is a must
before the court decides to rely upon it.”
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Shri R.M. Patwardhan also relies on a Division Bench judgment
of this Court in the State of Maharashtra Vs. Chatish Arunachalam
Das Ors, 2015 ALL MR (Cri)2961 and in particular paragraphs 12,
13 and 14 which read thus:
“12. P.W.7 is the victim girl Alina. At the time of recording of
her testimony she was nine years of age. This child witness
has narrated the incident in great detail. This witness in her
examination in chief has narrated the various acts
committed by the Respondents in her testimony. In her cross
examination, this witness has in unequivocal terms admitted
that P.W.1 i.e. her grandfather and P.W.6 i.e. her
grandmother were instructing her for giving the evidence.
She has further admitted that P.W.1 i.e. the grandfather was
instructing her as to what is to be stated before the Court
and what should not be stated before the Court. She has
further admitted that she has stated the names of the ‘rapist’
before the police. She has further admitted that a quarrel
took place between Respondent No.1 and P.W.1
Arunachalam because Respondent No.1 was coming to the
house after consuming liquor and Respondent No.1 used to
pick up quarrels on some trifle issues. She has further
admitted that P.W.1 i.e. her grandfather was fed up due to
the activities of Respondent No.1 and therefore P.W.1
Arunachalam started residing at garage. This witness in
paragraph 11 of her evidence has admitted that she was
participating in the competition of race and had stood first.
She was also participating in the competition of long jump
and high jump and was scoring good marks in the long and
high jump.
13. It further appears from the record that initial statement
of P.W.7 i.e. the victim girl Alina was recorded by police on
30 October 2009. However, the First Information Report is
recorded on 3 November 2009. The prosecution has not given
any explanation for the delay of four days in recording the
First Information Report and it appears to us that the::: Uploaded on – 14/02/2018 15/02/2018 02:29:46 :::
11 apeal699.02recording of the First Information Report at the instance of
P.W.1 Arunachalam which is at Exhibit 18 is an afterthought
and filed with malafide intention.
14. The defence has elicited various omissions in her cross
examination. What is surprising to note here is that this
child witness has stated in her cross examination that she
has read the word ‘rape’ in book and in her earlier part of
the testimony she has described the sexual assault as ‘galat
kaam kiya’ as a synonym to the term ‘rape’. In view of the
admissions given by this witness, in our considered opinion,
this child witness was tutored by P.W.1 Arunachalam to give
evidence as per his wish before the Court and we find that
her evidence is not reliable and trustworthy.”
I am respectfully bound by the enunciation of law in said
judgments. However, the pivotal issue is, whether the admissions
elicited in the cross-examination of the prosecutrix destroy the core and
substratum of the testimony. It would also be necessary to analyze the
evidence to ascertain whether the testimony of the child witness is
uncorroborated. The prosecutrix who was aged 9 years when the
evidence was recorded, has indeed admitted that some days before the
incident a quarrel took place between the accused and her maternal
uncle on account of money and that the accused threatened her
maternal uncle that money will be recovered. She admits that her
maternal uncle threatened the accused that he will file police case
against the accused. She admits that at the instance of maternal uncle
her maternal aunt had lodged report at the police station. Be it noted,
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12 apeal699.02that the prosecutrix emphatically denied the suggestion that she was
not taken by the accused to his home. She denies the suggestion that
she was not sexually ravished by the accused. The version of the
prosecutrix that she disclosed the incident to PW 3 Pratiksha has gone
unchallenged. A general suggestion is given that the prosecutrix is
deposing falsehood at the instance of her maternal aunt. Having
scrutinized the evidence of the prosecutrix with due caution, the
conscious of the Court is satisfied that she is not a tutored witness. The
evidence of the prosecutrix is corroborated by the evidence of PW 3
Pratiksha to whom the prosecutrix disclosed that she has a husband,
and when asked who was her husband, she pointed her finger towards
the accused. The evidence is further corroborated by the disclosure
made by the prosecutrix to her maternal aunt PW 1 Yashodhara. The
medical evidence on record is that the hymen was torn. The absence of
any physical injury on the genitalia of the prosecutrix, is not decisive.
11. Shri R.M. Patwardhan would submit that the First
Information Report is lodged belatedly. Delay in lodging the First
Information Report is not necessarily fatal to the credibility of the
prosecution version. The prosecutrix did not disclose the incident to
her maternal aunt fearing that she would be scolded or beaten. The
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incident came to light when she told PW 3 that she has a husband and
pointed out towards the accused. It is then, that after PW 3 informed
PW 1 Yashodhara and the entire incident was revealed by the
prosecutrix. The two days delay in lodging the report, in the factual
matrix, is duly explained.
12. The defence is of false implication. Although it is admitted
by the prosecutrix that there was a monitory dispute on the issue of
wages between her maternal uncle and the accused, PW 1 Yashodhara
has denied the suggestion that there was such dispute between her and
husband and accused. Arguendo, even if it is assumed, that there was
dispute, it would be rare, if at all, that a 8 to 9 year old child would be
used as a tool to wreak vengeance. The dispute was, according to the
defence, on the issue of non payment of wages. It is highly improbable
that such a relatively trivial issue would persuade the maternal aunt
and maternal uncle of the prosecutrix to falsely implicate the accused.
In the non permissive Indian society, sexual ravishment is unfortunately
a stigma. The relatives of the prosecutrix would be well aware that the
ghost of such stigma haunts the girl child through out her life. I am not
persuaded to hold that the defence is probabilized even on the
touchstone of preponderance of probabilities, particularly since in my
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view, the evidence of the prosecutrix is confidence inspiring.
(i) The appeal is sans merit and is rejected.
(ii) The accused is in custody in view of the order dated
30.11.2017. He shall continue to remain in custody to undergo
the reminder of the sentence.
(iii) The accused shall be entitled to set of under section 428 of
the Code of Criminal Procedure.
(iv) The bail bond of the accused shall stand cancelled.
(v) The appeal is disposed of in the above terms.
JUDGE
RSB
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